“The impunity of every citadel is intact” – the taming of the Verma Committee Report, and some troubling doubts

Legal activist Vrinda Grover said in the FeministsIndia e-list about the Ordinance: “The impunity of every citadel is intact – family, marriage, public servants, army, police.” In effect, she said, the Ordinance is simply the pending Criminal Law Amendment Bill 2012, widely criticized by women’s organizations, which has been sneaked in as law without debate or consultation, in Parliament or outside. Feminists activists are rightly suspicious of the sudden sense of “emergency” that has gripped the government, when it has ignored our demands for criminal law reform on sexual violence for over twenty years.

Here I will document two press releases issued by women’s groups, and draw attention to some troubling and unresolved debates within the women’s movement in India today. The post will conclude with a useful table comparing the Ordinance and the JVC Report, issued by the Ministry of Home Affairs.

As has been widely reported now, hundreds of individual women’s movement activists and organizations from all over the country have called upon the President not to sign into law this Ordinance that makes a mockery of the recommendations of the Justice Verma Commission Report that was received with a sense of relief and acclaim by feminists in India. Despite these appeals, the President signed the Ordinance today.

The press release making this request to the President said:

Information in the public domain, through media sources, reveals that an Ordinance on amendments to sexual assault law was cleared by the Cabinet yesterday, on February 1, 2013 – about 20 days before the next parliamentary session. We are alarmed at the complete lack of transparency displayed by the Government in proposing an Ordinance as an emergency measure. We wonder what objective and purpose will be served by such a hasty non-transparent measure – less than 3 weeks before the parliamentary session, since the proposed law will not retrospectively apply to the Delhi gang rape case.

We demand transparency and due process in law making. We demand that the Parliamentary process, including the Standing Committee process be upheld, for this is the place where we, as citizens of this country, have the right to be heard.

The statement pointed out that virtually all the recommendations of the JVC Report that had been hailed as “signs of a paradigm shift” in understanding violence against women, had been dropped, that is:

recognition in law of marital rape, new provisions on the offence of breach of command responsibility, non-requirement of sanction for prosecuting a member of the security forces accused of sexual assault and rape, provision for trying them under ordinary criminal law for sexual crimes; and change in definition of consent to any sexual act. ..

Furthermore, the content of the Ordinance to our knowledge has introduced provisions that were strongly rejected by the Justice Verma Committee, including the death penalty.

It is revealing that the sanction for prosecuting members of security forces involved in sexual assault has been retained. Rape is not only about individual or private acts of misogynist violence, feminists have long been concerned with sexual violence as a weapon of war, and as part of a wider repertoire of race, communal and caste violence. In India, custodial sexual violence against women (by police and army) and the culpability and impunity of the state, has been addressed in significant ways.

Large parts of the country are under effective army rule, the North-Eastern states and Kashmir in particular, being covered by the Armed Forces Special Powers Act. From time to time acts of sexual violence on women (activists as well as relatives of men suspected to be militants) are carried out by members of the Indian state’s armed forces.

Many such instances come to the notice of democratic rights groups and feminists, and are investigated by them, and protested about in various ways. Many remain unknown. But for the women’s movement in India, the recognition of rape as a political weapon is a significant part of its politics.

But what is the Indian state saying when it rejects the idea through this Ordinance that such cases should be tried under the criminal law of the land? Is the Indian state making it quite explicit that rape is a weapon of war, and that its coercive apparatus will continue to use it with no compunction?

Two issues stand out in the conversation within the women’s movement – gender neutrality in rape law and marital rape. The statement is strongly critical of the provision of gender neutrality regarding the perpetrator of sexual assault, suggesting that both women and men could potentially be charged for the offence. The statement insists that “Rape as we know it is a crime largely defined as male violence against women, with absolutely no evidence of women as perpetrators. This is in disregard of the Justice Verma recommendations too, and is totally unacceptable.”

The question of gender neutrality in law on sexual violence is the subject of sharp debate within feminist and queer groups in India. One important suggestion for rape law reform is to remove narrowly defined ‘rape’ (which is defined only as penile penetration of the vagina) and replace this with a series of degrees of ‘sexual assault’, the punishment increasing in severity with the degree of physical harm caused. As Flavia Agnes has pointed out, only in sexual assault is harm caused by a part of the human body considered to be more grievous than harm caused by a weapon. The reason why in patriarchal law, penile penetration of the vagina is considered more grievous than penetration by say, an iron rod, is obvious. Rape is considered to be a harm against the honour of the woman’s family, and the purity of her womb. Only the penis can damage that purity in such a way that patrilineal succession is cast in doubt – all other damage is bearable, ideally, leading to the death of the raped woman. That would be most ideal from the point of view of the family.

But once the definition of rape is expanded, gender neutrality of the perpetrator will have to be taken into account.

As Rohini Hensman said in the FeministsIndia e-list while discussing the issue of gender neutrality:

My mind goes to little 10-year-old Sonu who was sexually tortured and killed by the women who employed her. So according to our definition, women can quite easily rape a child or another woman, although Sonu’s case would be covered by the new Child Sexual Abuse Act. In rare circumstances, like Abu Ghraib, women can even sexually assault men. In situations of mass violence like Gujarat, women can be part of the mob engaged in ‘criminal solicitation’ (the charge against those who cheered on the rapists in the film The Accused, which was based on a real-life gang-rape).

With the possible repeal of Section 377 on the cards, there is consensus among feminists on gender neutrality with regard to the victim, so that rapes of men, boys and hijras can be taken into account. Where the perpetrator is concerned, it is more complicated. The perpetrator is assumed to be generally male, but in cases of custodial rape or rape in the context of a clear power situation, gender neutrality is also being proposed by some feminists for the perpetrator. The JVC Report has considered separate types of sexual abuse/violence separately, such that in some kinds of sexual abuse the perpetrator can be gender neutral and in others, not.

The suggestion of unqualified gender neutrality for the perpetrator of sexual violence is very contentious within the feminist perspective, as the statement above reveals. The fear is that gender neutrality with regard to the perpetrator except in clearly defined situations such as custody/authority, and with regard to child abuse, will only further make women the target of the law rather than offering them protection, given our overwhelmingly patriarchal and sexist context.

The other question has to do with recognizing marital rape. Again, Rohini raised a question that has long troubled me – if a marriage is violent, that must be grounds for divorce, but what are we saying when we insist it be treated as a crime? Is it preferable for a woman to have a husband in prison than be divorced? Does the idea of marital rape as a crime in fact protect the institution of marriage?

Rohini put it this way:

It is one thing to say that marital rape should be regarded as an act of domestic violence and should be grounds for divorce – that should be relatively non-controversial. But given that marriage is a sexual relationship, should all cases of marital rape be punished with 7 years or more in jail? Consider the following scenario: A young woman and man are married off, and the same night she comes crying and complaining that her husband raped her. Should he be jailed for what is, from his point of view, merely consummating their marriage? Unless we are demanding very clearly that the state ensure that all marriages are consensual (are we? in which case, how?), then we can hardly demand that he should be jailed for years – that is simply inconsistent and unfair too. So we need to make it much clearer what we mean by ‘recognition of marital rape’ before we can argue for it convincingly.

Rohini’s comments point to the inherent violence of compulsory marriage that grounds our society. In other words, criminalizing marital rape rather than treating it as grounds for divorce may still leave “the impunity of the citadel” of marriage intact.

In a related press release, sex workers’ organizations across the country (National Network of Sex Workers – India) too urged the President not to sign the Ordinance, raising a very crucial set of issues that have to do with criminalizing sex work. The statement strongly pointed out that ‘Trafficking of Persons’ was outside the purview of the specific terms of reference provided to the Justice Verma Commission in December 2012 and any recommendations relating to trafficking should not be included in the Ordinance:

The proposed Section 370 incorporated in the Ordinance cleared by the cabinet, conflates trafficking of persons and those who consent to sex work. At the heart of the problem is the newly worded Section 370 of the Verma Commission, which has been accepted in totality by the Ordinance. The Section deals with the offence of Trafficking of a Person. The term “exploitation” includes “prostitution” itself. This in essence means that all “prostitution” will now be interpreted as exploitation.

The Ordinance if accepted would criminalize people in sex work since the section does not differentiate between “coercive prostitution” and prostitution; nor does it talk about the “exploitation of prostitution“.

The Verma Commission has wrongly interpreted the internationally recognized and existing explanation of exploitation (under the UN Protocol, 2000), which states “Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation”. If the section is accepted, it would go against the commitment made by India which is a signatory to the Protocol and has ratified the UN Protocol in 2011.

The inclusion of voluntary and consenting sex workers into the definition of exploitation puts back the struggle waged by sex worker communities across India to ensure dignity for people engaged in sex work.

We are deeply concerned that this interpretation if accepted by the President of India will contradict the Hon’ble Supreme Court of India which has upheld the rights of women in sex work observing that Article 21 grants them a right to live with dignity.

If the section is accepted, it would go against the commitment made by India which is a signatory and has ratified the UN Protocol in 2011.

Feminism has for long seen prostitution as violence against women, and many feminists still do. However, a new understanding of the practice has emerged with the gradual politicization of people who engage in prostitution, and their voice becoming increasingly public. One of the key transformations that has come about because of this, is the emergence of the term sex work to replace ‘prostitution’.

The understanding behind this is that we need to demystify ‘sex’ – it is only the mystification of sex by both patriarchal discourses and feminists that makes sex work appear to be ‘a fate worse than death’. In fact, the preliminary findings of the first pan-India survey of sex-workers found that about 71 percent of them said they had entered the profession willingly. Hence the insistence of sex workers organizations on distinguishing between voluntary and coercive prostitution

And to to conclude, a useful document – a release from the Ministry of Home Affairs that tabulates the recommendations of the JVC Report that were accepted in part/in full/ or rejected.

Section 100: Right to Private Defence – Inclusion of an acid attack u/s 326A was accepted only and the rest proposed was already existing in the IPC

Section 376A: Sexual by husband upon his wife during separation –Verma Committee wanted to delete it. Was retained by MHA as marital rape was not agreed to.

Section 354 A: Assault or use of criminal force on woman with intent to disrobe her –Entirely Accepted

Section 166A: Public Servant disobeying direction under law –Directions relating to crimes against women proposed to be made punishable upto only one year against the recommended five years as proposed by Justice Verma Committee. Rest accepted.

Section 376B (1): Rape of an Underage Person –Not accepted as the provision is in conflict with the PCSOA, 2012

Section 354 B: Voyeurism –Entirely accepted

Section 326A: Voluntarily causing grievous hurt through use of acid etc. –Female circumcision proposed was not accepted. – Compensation adequate to meet at least the medical expenses incurred by the victim was not accepted. Rest was accepted

Section 376 B (2) Punishment for causing death or a persistent vegetative state in the course of committing rape of an underage person –Death penalty was not recommended

Section 354 C (1): Stalking –Entirely accepted

Section 326B: Volutarily throwing or attempting to throw acid etc. –Compensation adequate to meet at least the medical expenses incurred by the victim was not accepted. Rest was accepted

Section 376F: Offence of breach of Command Responsibility –Fixes vicarious criminal responsibility on the leader of a force for acts of subordinates. Not accepted.

Section 375 Rape –Gender Neutrality of the act was not recommended which was not accepted by MHA.The Bill criminalises the sexual activities between 16 and 18 years which the Verma Committee did not agree.Verma Committee criminalises marital non-consensual sexual intercourse which is not accepted.Rest of the recommendations were accepted.

Section 370 Trafficking of a Person –Entirely accepted

Section 376 (1) Punishment for Rape –Payment of compensation to the victim was dropped. Rest of the recommendation was accepted.

Proviso to Section 154 Registration of an Offence – Provision to record evidence by police officer at the residence of the person reporting the offence.Mandatory videographing was not agreed to and converted to optional.

Section 39(1) Clause (vb) –Compel communication of information of offence relating to crimes against women to the nearest Magistrate –Not accepted as it is liable to be misused

Section 160:No male below 18 and above 65 years and woman or physically disabled shall be required to attend a Police Station.

Section 164 (5)(a) and (6)(b) Recording Statement by a Magistrate –Special assistance for mentally or physically disabled persons to be given by Magistrate.Statement of mentally or physically disabled person to be considered sufficient for examination-in-chief and cross examination.However mandatory videography not agreed to and changed to optional.

Section 40A: Intimation by the Panchayat member the communication of information of offence relating to crimes against women to the nearest Magistrate –Not accepted as it is liable to be misused

Section 198B: Cognisance of an offence u/s 376(1) when persons are in marital relationship

Section 197(1) Sanction for Prosecution –No sanction would be required for prosecution of Judge or Magistrate or Public servant if accused of crimes against women.Not agreed to avoid false complaints

Proviso to Section 273: Recording of evidence of a victim below 18 years –Victim will not be confronted by the accused. Accepted in full

Section 357(4) Compensation to victim –Payment of compensation of an amount adequate to meet atleast the medical expenses incurred by the victim. This is not acceptable as the compensation would be very low. The Bill has a better provision.

I am responding to two specific points you have made, also quoting Rohini Hensman.

1. While the queer movement has made us rethink gender specificity when to comes to sexual assault, and we are glad it has done so, it is disturbing that the ‘widening the definition of rape’ needs to automatically mean that the perpetrator has to be gender neutral.

Gender, like class, is a contradiction. The economy, polity and society operate in a gendered manner. Women do not earn as much as men, as soon as any work that women engage in becomes a little better paid, women lose access to it and are relegated to jobs that pay less. Historically, women won franchise in only the 20th century. Political spaces are not freely available to women. Societies, whether traditional or modern, treat women as inferior and commodify women – both the wife and the whore.

Violence is also gendered. Or rather, we have to look at violence as gendered, as violence is both located in and is a product of our gendered society, polity and economy. Sexual violence is particularly that violence which has a sexual element to it. This does not mean that rape is only ‘sex without consent’, though, it is one of the many things that rape, or rather sexual assault is. Rape is not about sexual desire. Rape is about exercising patriarchal male power. And not necessarily only by means of the penis. This is why the perpetrator in sexual assault should remain gender specific, even if the definition is broadened to more than peno-vaginal penetration.

Of course, it is different in custodial or conflict situations, which is the reason a completely different way of looking at all violence in these situations, and therefore, a completely different law is necessary.

2. Marital rape has to be recognised as what it is – rape of women within marriage. If an act is defined as a crime, it gives room for the person affected by the crime to make such use of redress mechanisms as she deems fit. If we are to treat all violence within marriage as only grounds for divorce, then why criminalise any form of domestic violence?

And yes, if a young man forces his (equally) young wife into having sex, she bloody well will cry rape! And is fully justified in doing so. Why has no one taught that stupid boy about consent, or even wooing?!

I wonder: are we assuming that a woman who accuses a husband of rape, will not want to divorce him? Why assume that a rape charge will be a substitute for divorce? If a woman has experienced rape in marriage, she may or may not want to pursue a criminal charge against the husband, and she may or may not want to divorce him. But surely, the choice must lie with her? Can the law deny her the option of filing a rape charge? I find this argument very troubling: “A young woman and man are married off, and the same night she comes crying and complaining that her husband raped her. Should he be jailed for what is, from his point of view, merely consummating their marriage?” Surely, if marital rape is recognised, it will help to bring in a realisation that violent consummation of a marriage is just not on? Why should we rationalise the idea that it is ok and understandable for men to continue to assume that they can ‘expect’ sex on demand, from a wife? And the assumption that every wife in an arranged marriage is raped on her first night is not, perhaps, true. Neither is it accurate to assume that every such bride will ‘come crying rape.’ If indeed she is raped, she must have every right to ‘cry rape,’ the law cannot on any pretext deny her this right. But the other point is that not every wife may avail of this legal right. If the wife complains of rape, the chances are she has abandoned hope of her marriage and may file for divorce anyway.
Also, domestic violence (violation of a restraint order) is punishable in the law, it is not just grounds for divorce. If a husband murders a wife, is it not a crime? Why should other forms of violence that do not quite end up in murder, be seen as somehow part of the rubric of marriage – if you got married, you made your bed, now lie in it?

Kavita, Apoorva, thanks for your inputs. I am only expressing some disquiet within a feminist framework about a couple of specific thorny issues and am certainly not (and nor is Rohini I am sure), making any straightforward assertion against criminalizing marital rape. For my part, I was expressing a more fundamental discomfort with a sort of feminist reification of marriage that we have seen in the Uniform Civil Code debates, for example. Or that we find in the provision that criminalizes adultery. If we politically and theoretically confront head-on the institution of compulsory (heterosexual) marriage, within which precisely, consent of the woman for everything is taken for granted, then we do need to ask the question Rohini asks – can we demand that all marriages have to be decided with the consent of the two people concerned? What happens if that point is publicly made by us (feminists)? Will that give more general legitimacy to an idea that may be drawn by at least some young people?
If rape becomes an additional ground for divorce (as you suggest, Kavita) that is another matter, and I agree that a woman claiming marital rape has probably given up on the marriage already. But Rohini’s troubled point (within a feminist field of debate) was highlighting the aspect of socialization into the idea of compulsory marriage, within which men too are caught. (Apoorva, I think Rohini’s instance about the woman complaining about rape on her first night of marriage could not be referring to sections of society who can think of “courtship” within or outside marriage, anyway.)
But here’s my last thought for the moment on this, emerging in conversation with you – perhaps by demanding the criminalization of marital rape, we are in fact opening up and denaturalizing the institution of marriage as a public one, subject to the public demands of our Constitution and the norms of democratic functioning – which can go a far way in exposing its naturalized compulsory character.And perhaps there is something we can make of the fact that under Indian law and legal cultures two categories of women “cannot” ever be raped – wives and sex-workers!
About gender neutrality for the perpetrator of sexual violence, I am in sympathy with the position within feminist/queer movements (expressed By Arvind Narrain and Pratiksha Baxi among others), that there should be unqualified GN for the victim, and qualified GN for the perpetrator – in situations of a clear power/authority relationship (e.g. teacher-student, employer-employee, police, armed forces vis-a-vis civilians, prisoners etc). I think this would address your concerns, Apoorva, about the undoubtedly gendered nature of violence and power in our societies. Of course, the Ordinance reveals no such nuanced understanding, and unqualified GN across the board is certainly something no Indian feminist wants.

“unqualified GN across the board is certainly something no Indian feminist wants.”- So is this a new test for being ‘Indian’ or ‘Feminist’?This is one of the saddest things I have read in kafila. Being browbeaten by the completely illogical blackmail of apoorva and her ilk by as sophisticated a thinker as Menon! ( (‘Party line’? ‘Revisionist’ Menon made to agree for ‘feminist unity’?) “Rape is about exercising patriarchal male power” or “undoubtedly gendered nature of violence and power in our societies”- both are non-sequiters to non-GN positions. Isn’t this all about gendered violence which can be inflicted by anybody(male/female/trans) and not about the perpetrator possessing particular sexual organs? You can conceptualise such violence being inflicted by a woman/ transgender person but refuse to recognise it- its a dishonest position even if pragmatic. And underlying this position is a continued fetish of the vagina as the privileged object of sexual attack by a penis. Phallocentrism it is, make no mistake. And ressentiment of the silliest kind. Alas, the choice we have been left with is between madhu kishwar and apoorva!

Rana, please dont use me to fight your evidently personal battles. This is how feminist conversations proceed – we listen to one another, we move in different directions from where we started, and everybody sometimes ends up in a different place from where they began. And thank goddess for that!

Thank you, Nivi, you have explained my points well. Regarding gender neutrality of the perpetrator, I was merely suggesting that we specify circumstances (custodial, mass violence) where women could be perpetrators. In fact, isn’t this already the case in the Prevention of Sexual Offences Against Children Act? And regarding marital rape, I was pointing out the contradiction between accepting non-consensual marriage (and I don’t mean arranged marriages, which are often consensual), but making non-consensual marital sex a criminal offence. To be logical, shouldn’t we make forcing women into non-consensual marriages also a criminal offence?

Fully agreed about qualified GN, and thanks for the extended discussion on the feminist debate re criminalising marital rape… and yes, I think non-consensual marriage (without assuming every arranged marriage is non-consensual) should be an offence.
But, as Pratiksha’s piece on kafila explains, it’s urgent to disseminate what GN as defined in the ordinance is going to do! It’s neither pro-women nor pro-queer, it’s a disaster.

rana – How is saying “rape is about exercising patriarchal male power” a non-sequiter to gender specificity (your non-GN)? And how does the continued fetishising of the vagina as the ‘privileged object of attack’ even enter the debate when the argument is about the need to retain the gender specificity of the perpetrator? My point is only this – sexual assault and violence cannot be understood only in terms of sexual organs, but in terms of power, both possessed and exercisable. And yes, I am sorry about the poverty of your choice!

Rohini – Thanks for clarifying; your points seemed to be arguing for gender neutrality of the perpetrator across the board. Regarding marital rape, it is not only about non-consensual marriages, or sex within forced marriages. The fundamental principle is that of a woman’s bodily integrity.
And on a different note, yes, it is time that we think of a campaign against forced marriages.

Nivedita – just one thing: “I think Rohini’s instance about the woman complaining about rape on her first night of marriage could not be referring to sections of society who can think of “courtship” within or outside marriage, anyway.” – then, are we saying that men belonging to these sections should be granted impunity, because they do not know better? And doesn’t marital rape occur across all sections of society, and even in ‘love marriages’?

Nivedita, please believe me that I am not trying to fight any personal battles here. I mentioned Apoorva by name and that might have given such an impression, but I could be talking about madhu mehra or vrinda grover or any other feminist with such a view on GN rape. But really, I didn’t expect that after having provocatively raised this issue through Rohini’s interventions, you would buckle under the party line with such a lame justification, just for the sake of ‘feminist unity’. Please address my earlier questions on merits. It really isn’t about specific people. I am asking you because I have always looked up to your opinions on such issues which have not been scared of sounding heretical (and not just contrarian like la kishwar)

In response to protests by sex workers’ organizations and request for clarification from the Verma Commission by the National Network of Sex Workers, Justice Verma committee responded on Friday clarifying that its recommendations for amendment to Section 370 was aimed at protecting women and children from being trafficked.
“It is also clarified that the recast Section 370 ought not to be interpreted to permit law enforcement agencies to harass sex workers who undertake activities of their own free will, and their clients,” wrote Abhishek Tiwari, counsel to the committee.

“Unless we are demanding very clearly that the state ensure that all marriages are consensual”

The state does indeed demand that all marriages are consensual. If a woman is dragged, drugged or beaten up and forced to get marriage, that’s illegal and the marriage itself is null and void.

“Should he be jailed for what is, from his point of view, merely consummating their marriage?”

Then “his views” are wrong. Marriage is not by definition a sexual relationship. The couple can choose to make it one if they want. There’s no god given right to sex. The most that can be said is that it’s a ground for divorce. But the moment you use force that is rape and the man is an outright criminal. Sorry, but no sympathy here.